U.S. v. Delaney

• Decision Date: 23 April 1984
• Docket Number: No. 83-1541,83-1541
• Citation: U.S. v. Delaney, 732 F.2d 639 (8th Cir. 1984)
• Parties: 15 Fed. R. Evid. Serv. 1281 UNITED STATES of America, Appellee, v. Dennis Joseph DELANEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 639

732 F.2d 639

15 Fed. R. Evid. Serv. 1281

UNITED STATES of America, Appellee, v.Dennis Joseph DELANEY, Appellant.

No. 83-1541.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 13, 1983.

Decided April 23, 1984.

Philip N. Hogen, U.S. Atty., Sioux Falls, S.D., Robert A. Mandel, Asst. U.S. Atty., Pierre, S.D., for appellee.

Charles Rick Johnson, Johnson, Eklund & Davis, Gregory, S.D., for appellant.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

BRIGHT, Circuit Judge.

Dennis J. Delaney appeals from his convictions for knowingly making a false statement in acquiring a firearm and for receipt of a firearm by a convicted felon.For reversal, Delaney argues that the district court erred (1) in denying his motion for a new trial, (2) in excluding evidence that indicated he had been pardoned of a prior felony conviction, and (3) in denying his motion to suppress the pistol that was the basis for the receipt of firearms charges.We affirm the district court's denial of the motion to suppress the pistol, but conclude that the court erred in failing to grant Delaney a new trial and in excluding evidence indicating a pardon of the prior felony conviction.Accordingly, we reverse and remand this case for a new trial and for proceedings consistent with this opinion.

I.Background.

On December 30, 1980, Dennis Delaney applied to purchase a Bersa pistol at the Red Owl Family Center in Pierre, South Dakota.One application form, United States Bureau of Alcohol, Tobacco, and Firearms Form 4473, directed Delaney to state whether he had been convicted of a crime punishable by imprisonment for a term exceeding one year.Delaney responded to the question by writing "no."In accordance with normal procedures, the Red Owl retained Form 4473 for its files and sent other forms Delaney completed to the sheriff's office for verification.After receiving no word of disapproval from the sheriff's office, the Red Owl delivered the Bersa pistol to Delaney on January 5, 1981.

Contrary to his representation on the application to purchase the Bersa pistol, Delaney did indeed have a felony record.In December 1979, Delaney had pled guilty in Spirit Lake, Iowa to a charge of receiving stolen property, a crime punishable by imprisonment for a term not exceeding five years and a fine no greater than $500.He received a five-year suspended sentence and was placed on probation for two years.

Delaney's status as a convicted felon came to the attention of the Pierre Police Department in August of 1981, when Penny Anderson, who was then living with Delaney, reported a disturbance at her home.After arriving at Anderson's home and investigating the complaint, the police took custody of the Bersa pistol Delaney had purchased in December 1980.After further investigation, the police also learned of Delaney's felony record in Iowa, and, for this reason, refused to return the Bersa pistol to him.

Despite the police department's refusal to return his Bersa pistol, Delaney nevertheless regained custody of the pistol in August 1982.The police department had arranged for Old World Arms, a local gun dealer, to sell the pistol and, after retaining a fee for its services, remit the proceeds of the sale to Delaney.Delaney subsequently informed Old World Arms that he had sold the pistol to one Monty McBride.Delaney paid Old World Arms the agreed upon brokerage fee, and Old World Arms delivered the pistol to McBride.Several weeks later, on August 11, 1982, McBride gave the pistol to Delaney.

On November 19, 1982, Delaney was indicted on federal charges relating to his purchase and receipt of the Bersa pistol.¹Count I charged him with knowingly making a false statement in acquiring the firearm in violation of 18 U.S.C. Sec. 922(a)(6), and counts II and III charged him with receipt of the firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(h)(1).²A jury convicted Delaney on these counts, and the court sentenced him to three concurrent terms of two years' imprisonment.

II.Discussion.

A.Jury Misconduct.

Delaney contends that the district court abused its discretion in denying his motion for a mistrial because misconduct by the jury foreman deprived him of a fair trial.We turn to this issue.

On the last day of testimony, February 25, 1983, the trial judge was informed that during the trial the foreman of the jury, Douglas Morgan, had asked an officer at the Pierre Police Department about probation procedures.While the jury was deliberating, the court conducted a hearing to determine the nature of Morgan's inquiry.The record discloses that on the morning of the last day of trial, Morgan appeared at the front desk of the police department and asked Officer Hemmelman whether "a parolee is advised of the condition of his parole when he is placed on parole by his parole agent."Officer Hemmelman testified that he replied, "[A]s far as I know they were.In fact, that in cases I was aware of they were given a copy of the parole agreement."

Arguing that this conversation might impermissibly affect the jury's verdict, Delaney moved for a mistrial.The court did not at that time rule on the motion.

After the jury returned its verdict, the court and Delaney's counsel questioned Morgan about his conversation with Officer Hemmelman.Morgan testified that he made the inquiry at the police department because I got to thinking about [sic] Mr. Delaney had been on probation.So I thought I would go to the Police Station and ask them if he was ever put on probation, if he was read the charge and the rights and stuff * * *.

Morgan also testified that Officer Hemmelman "wasn't sure" if a probationer was aware of the conditions of his probation, and stated that he did not discuss his conversation with Officer Hemmelman with the other jurors.Delaney renewed his motion for mistrial, which the court denied.

On April 20, 1983, eight days after entry of judgment and sentencing, Delaney filed a notice of appeal and moved pursuant to Fed.R.Crim.P. 33 for a new trial.In an order dated May 23, 1983, the court denied the new trial motion.On May 26, 1983, after obtaining affidavits from two jurors who attested that Morgan had communicated the substance of his conversation with Officer Hemmelman to the jury, Delaney moved again for a new trial based on newly discovered evidence.On June 28, 1983, this court remanded the case to the district court to consider the newly discovered evidence and to rule on Delaney's May 26, 1983 motion for a new trial.On remand, the court again denied the new trial motion, finding (1) that Morgan's inquiry of Officer Hemmelman "produced nothing but an equivocal answer which did not influence the result of the trial," and (2) that "none of the affidavits recite that juror Morgan communicated to the other jurors any information that he might have received."

It has long been settled that a jury in a criminal case must reach a verdict based upon evidence presented at trial.SeeTurner v. Louisiana, 379 U.S. 466, 472-73, 85 S.Ct. 546, 549-50, 13 L.Ed.2d 424(1965);Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751(1961).Accordingly, any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant's right to a fair trial.Remmer v. United States, 347 U.S. 227, 229, (1954);United States v. Sublet, 644 F.2d 737, 740(8th Cir.1981);see also, United States v. Hillard, 701 F.2d 1052, 1064(2d Cir.)(extra-record information that comes to jury's attention presumptively prejudicial; juror informed other jurors of background of lawyers and custodial status of defendants), cert. denied, --- U.S. ----, 103 S.Ct. 2431, 77 L.Ed.2d 1318(1983).This presumption of prejudice is not conclusive, but "the burden rests heavily upon the Government to establish * * * that such contact with the juror was harmless to the defendant."Remmer v. United States, supra, 347 U.S. at 229, 74 S.Ct. at 451.See alsoUnited States ex rel. Owen v. McMann, 435 F.2d 813, 818(2d Cir.1970)("touchstone of decision" in case involving extra-record evidence is "not the mere fact of infiltration of some molecules of extra-record matter, * * * but the nature of what had been infiltrated and the probability of prejudice").

Although the trial court has substantial discretion in determining whether an improper contact with a juror has caused prejudice to the defendant, seeUnited States v. Sublet, supra, 644 F.2d at 741;United States v. Doe, 513 F.2d 709, 712(1st Cir.1975), the misconduct here would prejudice Delaney's right to a fair trial.The information Officer Hemmelman passed along to Morgan concerned the primary factual issue before the jury on count I, which was whether Delaney "knowingly" made a false statement when he stated on his application for a firearm that he had never been convicted of a crime punishable by imprisonment for a term exceeding one year.³At trial, Delaney testified that he thought his criminal record had been "wiped clean" when he completed his probation, and thus did not misrepresent his criminal record "knowingly."⁴Officer Hemmelman's statements, however, could have given Morgan reason to doubt Delaney's testimony.Hemmelman told Morgan that parolees generally know of the terms and conditions of their parole.Morgan may plausibly have inferred from this statement that as a person on probation, ⁵ Delaney was aware of the terms and conditions of his probation, including his continuing status as a felon.As such an inference would be contrary to Delaney's defense, the prejudice in Officer Hemmelman's statement is apparent.Indeed, the potential influence of this statement upon the jury's deliberations was particularly strong because Morgan served as foreman of the jury.Accordingly, we conclude that the district court abused its discretion in denying Delaney's motion for a mistrial...